ALI MUHAMMAD vs COMMISSIONER AFGHAN REFUGEES, N.W.F.P. and another

' SALEEM AKHTAR, J.---The appellant with the leave of the Court has challenged the judgment of the Federal Service Tribunal dated 14-2-1994, whereby his appeal was dismissed in limine.

2. The facts as noted in the leave granting order are as follows:- "The undisputed facts of the case are that the petitioner/appellant was appointed as Senior Clerk in BPS-6 in the office of Commissioner Afghan Refugees, N.W.F.P., Peshawar with effect from 26-7- 1980 and was able to secure promotion to B.P.S.16 with effect from 2-10-1982. A departmental inquiry was initiated against him and in spite of the fact that he did not associate himself in the inquiry, he was exonerated from the charge for lack of proof. However, his services were later on terminated being no longer required vide order dated 18-10-1993. He preferred departmental appeal on 26-10-1993 and having not received any reply, he preferred appeal on 27-1-1994 before the Federal Service Tribunal which was dismissed through the impugned order."

3. Leave was granted to consider that as the appellant has put in more than 10 years' service entitling him to pensionary benefits whether his services could be terminated summarily and whether such termination will not deprive him of these benefits.

4. We have heard the learned counsel for the appellant and the learned Deputy Attorney-General.

The learned counsel for the appellant contended that appeal to the Tribunal being in the nature of first appeal on question of fact and law, it should not have been dismissed in limine. On the other hand the learned Deputy Attorney-General contended that as the appellant had not filed any document, as provided by the Rules, the Tribunal was justified in dismissing the appeal in limine. In support of his contention the learned counsel for the appellant has referred to Article 212 (3) of the Constitution which provides that appeal against the decree or order of the Tribunal shall lie to the Supreme Court only if it is satisfied that the case involves a substantial question of law of public importance and grants leave to appeal. According to the learned counsel right of appeal is subject to the leave and restricted to substantial question of law of public importance. Thus, the Tribunal is the only forum available to an appellant which can examine the facts as well as the question of law. It is true that the appeal filed before the Tribunal is in the nature of first appeal as provided in the Code of Civil Procedure and it will be proper if principles governing such appeal are kept in view. Rule 11 of Service Tribunal (Procedure) Rules, 1974 permits the Tribunal to dismiss the appeal in limine after hearing the appellant or his Advocate. Such power may be exercised if the appeal on the face of it is time-barred, barred by any law or disputed questions of law and facts are not involved. But where disputed questions of facts and law requiring appreciation of evidence, interpretation of documents and orders or the assertion and denial of rights based on rules and regulations are involved, the proper course is that a full-fledged hearing should be given to determine such questions. The parties to the appeal should be given proper hearing depending on the facts of the case in such manner that no impression is created that the sole object of hearing is to stifle it or knock out on technical grounds for purposes of disposal. This view fmds support from Humayun Zulfiqar Ismail v. Hamida Sadat All (1968 SCM R 828) referred by the learned counsel where while dealing with Order XLI, Rule 11 which empowers the Court to dismiss first appeal in limine, it was observed: "In an original appeal or what is more commonly called a first appeal the first appellate Court is the final Court of facts. Dismissal under Order XLI, Rules 11 of the Code of Civil Procedure of a first appeal is therefore, not the general rule. If the facts are not simple or undisputed a first appeal is not generally dismissed in limine."

' Again in Abid Hussain v. Mst. Afsar Jehan Begum (PLD 1973 Supreme Court 1): "As has been observed by this Court in the decision cited above, dismissal in limine of a first appeal is not the general rule but is resorted to only in those cases which are of such a simple nature that no question of law or fact arises for consideration. In such cases rule 11 of Order XLI of the Code of Civil Procedure does certainly give the Appellate Court the power to dismiss an appeal in limine."

5. The learned counsel for the appellant contended that the appellant did not have the order of appointment which was produced later on when the order had been reserved and had not been announced but it was not taken into consideration. Be that as it may, from the impugned order, it seems that it is mostly based on presumptions and assumptions. The observations that "the appellant as it appears from the impugned order of termination of service was a temporary employee and had no vested right for retention in service of an Organization which itself was temporary" and that 'because service of hundreds of employees were terminated as being no longer required like the appellant goes to prove that nature of appointment of the appellant in the organization was purely temporary" does not seem to be based on any evidence on record. Again reliance was placed on a judgment of this Court in Civil Petition No,359 of 1993 but as pointed out by the learned counsel for the appellant it related to appointment on temporary basis and on contract up to 2 years. The learned Deputy Attorney-General pointed out that the appellant was appointed on 28-7-1980 as Clerk on temporary basis but subsequently against the vacant post he was promoted by Notification dated 2-10-1982 and transferred to Afghan Refugees Commissionerate. The learned counsel also placed on record documents to show that his promotion was on the existing terms and condition for the period of 2 years which was extended from time to time. In such circumstances, question will arise whether the appellant who had put in service for more than 10 years was to be treated employed on temporary basis, contract basis or as a permanent employee and was he entitled to pensionary benefits. All these questions required investigation and scrutiny with reference to the documents, some of which have been produced before us. We, therefore, set aside the impugned judgment and allow the appeal. The appeal filed by the appellant before the Tribunal shall be treated to have been admitted for regular hearing.

The Tribunal shall hear the appeal on. Merits. The parties are permitted to file such documents as they may deem fit.